DOCUMENT RESUME

ED 067 779 EC 050 047

AUTHOR Abeson, Alan, Ed.TITLE A Continuing Summary of Pending and Completed

Litigation Regarding the Education of HandicappedChildren.

INSTITUTION Council for Exceptional Children, Arlington, Va.Information Center on Exceptional Children.

SPONS AGENCY Bureau of Education for the Handicapped (DHEW/OE) ,Washington, D.C.

REPORT NO SFICEC-5PUB DATE 10 Oct 72NOTE 39p.

EDRS PRICE MF-$0.65 HC -$3.29DESCRIPTORS *Civil Rights; *Court Cases; *Educational

Opportunities; *Exceptional Child Education; GradeRepetition; *Handicapped Children; Legal Problems;Student Placement

ABSTRACTReported are summaries of 27 legal cases

substantiating the right of handicapped children to equal protectionunder the law including the right of being provided with aneducation, and full rights of notice and due process in relation totheir selection, placement, and retention in educational programs.Nineteen of the cases concern the right to an education, five theright to treatment, and three placement. Relevant facts concerningthe plaintiffs are examined as well as the court pronouncements.Plaintiffs for the right to education seek such measures as adeclaration that the provision of unequal amounts of tuition moneydepending on the category of handicap is unconstitutional, and apermanent injunction requiring educational programs for the retardedin schools, institutions, hospitals, and homes with all costs beingcharged to the responsible public agency. Cases about treatmentprotest such elements of institutional life as overcrowding,questionable medical research, lack of qualified personnel, andbrutality. Considered are allegations that black children have beeninappropriately classified as educable mentally retarded, and thatthe disproportionate number of bilingual children enrolled in classesfor the mentally handicapped indicates inadequate placementprocedures. (GW)

A CONTINUING SUMMARY OF PENDING AND COMPLETED LITIGATIONREGARDING THE EDUCATION OF HANDICAPPED CHILDREN

edited by

ALAN ABESON, DirectorState-Federal Information Clearinghouse

For Exceptional Children

Wib

cc:Council for Exceptional Children1411 S. Jefferson Davis Highway:.L1O L) Suite 900

Ln Arlington, Virginia 22202

O .

'.-(/)U.S. DEPARTMENT OF HEALTH.

LL1 EDUCATIDN & WELFAREOFFICE DF EDUCATION

THIS DOCUMENT HAS BEEN REPRO-DUCED EXACTLY AS RECEIVED FROMTHE PERSON OR ORGANIZATION ORIG-INATING IT. POINTS OF VIEW OR OPIN-IONS STATED DO NOT NECESSARILYREPRESENT OFFICIAL OFFICE OF EDU-CATION POSITION OR POLICY

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Number 5October 10, 1972

With increasing frequency U.S. courts are being confronted with civilactions dealing with the denial of the civil rights of handicapped childrenand adults. The majority of these actions have focused on the public respons-ibility to provide education and treatment for the nation's handicapped citi-zens. The decisions reported here dealing with children have substantiatedthe right of handicapped children to equal protection under the law - includingbeing provided with an education and full rights of notice and due process inrelation to their selection, placement, and retention in educational programs.

Recognizing that the litigation represents an important avenue of change.The State-Federal Information Clearinghouse for Exceptional Children (SFICEC),a project supported by the Bureau of Education for the Handicapped, U.S. Officeof Education, located at The Council for Exceptional Children, has collectedand organized this summary of relevant litigation. A variety of sourcesincluding attorneys, organizations, and the plaintiffs involved in the caseswere contacted. The focus of the cases included in the summary is directedto education.

This summary does not include all cases filed to date. Information iscontinuously being received about new cases, and, thus, there is always some-thing too recent to be included. SFICEC will continue to acquire, summarize,and distribute this information. Those interested in more in-depth informationshould contact SFICEC. Each new edition of the summary contains all the informationpresented in earlier editioris; thus, there is no necessity for readers to obtainprevious editions..

In addition to this material, SFICEC has access to extensive informationregarding law, administrative literature (rules and regulations, standards,policies), and attorney generals' opinions of the state and federal governmentsregarding the education of the handicapped. For further information about theproject's activities and services contact:

State-Federal Information Clearinghouse for ExceptionalChildren

Council for Exceptional Children1411 S. Jefferson Davis Highway, Suite 900Arlington, Virginia 22202

A.A.

October 10, 1972

(The work presented herein was performed pursuant to a grant fromthe Bureau of Education for the Handicapped, Office of Education,U.S. Department of Health, Education, and Welfare.)

TABLE OF CONTENTS

RIGHT TO AN EDUCATION

Mills v. Board of Education of the District of Columbia**Pennsylvania Association for Retarded Children, Nancy Beth Bowman,

et. al., v. Commonwealth of Pennsylvania, David R. Kurtzman,et. al.

Catholic Social Services, Inc., Jimmy, Debbie, et. al., v. Boardof Education of the State of Delaware, Robert McBride, KennethC. Madden, et. al.**

Reid v. New York Board of EducationJolla Doe v. Milwaukee, Wisconsin Board of School Directors*Marlega v. Board of School Directors of Milwaukee*Wolf, et. al. v. The Legislature of the State of UtahMaryland Association for Retarded Children, Leonard Bramble, et al.

v. State of Maryland, et. al.*North Carolina Association for Retarded Children, James Auten Moore,

et. al. v. State of North Carolina, et. al.**Crystal Rene Hamilton v. Dr. J. Iverson Riddle, Superintendent of

Western Carolina Center, et. al.*Benjamin Harrison, et al. v. State of Michigan, et. al.Association for Mentally Ill Children (AMIC), Lori Barnett, et. al.

v. Milton Greenblatt, Joseph Lee, et. al.Mindy Linda Panitch, et. al. v. State of Wisconsin*Lori Case, et. al. v. State of California, Department of Education,

et. al.**Michael Burnstein, Fred Polk, et. al. and Alan Miller, Jonathan Booth,

et. al. v. The Board of Education and the Superintendent of theContra Costa County School District**

Tidewater Association for Autistic Children v. Commonwealth ofVirginia, et. al.*

Craig Uyeda v. California State School for the Deaf, et. al.*Seth Kivell, P.P.A. v. Dr. Bernard Nemointin, et. al.*In Re Held, New York Family Court*

RIGHT TO TREATMENT

Wyatt, et. al. v. Stickney M.D., et. al.Burnham v. Department of Public Health of the State of Georgia**Ricci, et al. v. Greenblatt, et al.New York Association for Retarded Children, et. al. v. Rockefeller,

et. al. and Patricia Parisi, Anselmo Clarke, et. al. v. Rockefeller,et. al.

Patricia Welsch, et. al. v. Vera J. Likins, Commissioner of PublicWelfare, et. al.*

PLACEMENT

Larry P., M. S., M. J., et al. v. Riles, et. al.Lebanks, et. al. v. Spears, et. al.Madalupe Organization, Inc., v. Tempe Elementary School District*

*New case this edition**Change of status since last edition

***Decision rendered

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RIGHT TO AN EDUCATION

MILLS v. BOARD OF EDUCATION OF THE DISTRICT OF COLUMBIA,Civil Action No. 1939-71 (District of Columbia).

Shortly after the conclusion of the Pennsylvania case, another landmarkwas achieved in a similar case in the District of Columbia. In Mills v. D.C.Board of Education, the parents and guardians of seven District of Columbiachildren brought a class action suit against the Board of Education of theDistrict, the Department of Human Resources, and the Mayor for failure toprovide all children with a publicly supported education.

The plaintiff children ranged in age from seven to sixteen and werealleged by the public schools to present the following types of problemsthat led to the denial of their opportunity for an education: slightlybrain damaged, hyperactive behavior, epileptic and mentally retarded, andmentally retarded with an orthopedic handicap. Three children resided inpublic, residential institutions with no education program. The otherslived with their families and when denied entrance to programs were placedon a waiting list for tuition grants to obtain a private educational program.However, in none of these cases were tuition grants provided.

Also at issue was the manner in which the children were denied entranceto or were excluded from public education programs. Specifically, the com-plaint said that "plaintiffs were so excluded without a formal determinationof the basis for their exclusion and without provision for periodic reviewof their status. Plaintiff children merely have been labeled as behaviorproblems, emotionally disturbed, hyperactive." Further, it is pointed outthat "the procedures by which plaintiffs are excluded or suspended frompublic school are arbitrary and do not conform to the due process require-ments of the fifth amendment. Plaintiffs are excluded and suspended with-out: (a) notification as to a hearing, the nature of offense or status,any alternative or interim publicly supported education; (b) opportunityfor representation, a hearing by an impartial arbiter, the presentation ofwitnesses, and (c) opportunity for periodic review of the necessity forcontinued exclusion or suspension."

A history of events that transpired between the city and the attorneysfor the plaintiffs immediately prior to the filing of the suit publiclyacknowledged the Board of Education's legal and moral responsibility toeducate all excluded children, and although they were provided with numer-ous opportunities to provide services to plaintiff children, the Board failedto do so.

On December 20, 1971, the court issued a stipulated agreement and orderthat provided for the following:

1. The named plaintiffs must be provided with a publicly supportededucation by January 3, 1972.

2. The defendants by January 3, 1972, had to provide a list showing(for every child of school age not receiving a publicly supported educationbecause of suspension, expulsion or any other denial of placement): thename of the child's parents or guardian; the child's name, age, address, and

telephone number; the date that services were officially denied; a breakdownof the list on the basiS of the "alleged causal characteristics for suchnon-attendance;" and finally, the total number of such children.

3. By January 3, the defendants were also to initiate efforts toidentify all other members of the class not previously known. The defendantswere to provide the plaintiff's attorneys with the names, address, and tele-phone numbers of the additionally identified children by February 1, 1972.

4. The plaintiffs and defendents were to consider the selection ofa master to deal with special questions arising out of this order.

A further opinion is presently being prepared by United States Districtof Columbia Court Judge Joseph Waddy which will deal with other matterssought by the plaintiffs including:

1. A declaration of the constitutional right of all children regard-less of any exceptional condition or handicap to a publicly supported educa-tion.

2. A declaration that the defendant's rules, policies, and practiceswhich exclude children without a provision for adequate and immediate alter-,native educational services and the absence of prior hearing and review ofplacement procedures denied the plaintiffs and the class rights of due pro-cess and equal protection of the law.

On August 1, 1972, Judge Waddy issued a Memorandum, Opinion, Judgmentand Decree on this case which in essence supported all arguments brought bythe plaintiffs. This decision is particularly significant since it appliesnot to a single category of handicapped children, but to all handicappedchildren.

In this opinion, Judge Waddy addressed a number of key points reactingto issues that are not unique to the District of Columbia but are commonthroughout the nation. Initially he commented on the fact that parents whodo not comply with the District of Columbia compulsory school attendancelaw are committing a criminal offense. He said, "the court need not belaborthe fact that requiring parents to see that their children attend school underpain of criminal penalties presupposes that an educational opportunity willbe made available to the children. ... Thus the board of education has anobligation to provide whatever specialized instruction that will benefit thechild. By failing to provide plaintiffs and their class the publicly-supportedspecialized education to which they are entitled, the board of education vio-lates the statutes and its own regulations."

The defendants claimed in response to the complaint that it would beimpossible for them to afford plaintiffs the relief sought unless the Congressappropriated needed funds, or funds were diverted from other educational ser-vices for which they and been appropriated. The court responded: "The defen-dants are required by the Constitution of the United States, the District ofColumbia Code, and their own regulations to provide a publicly-supported edu-cation for these 'exceptional' children. Their failure to fulfill this clearduty to include and retain these children in the public school system, orotherwise provide them with publicly-supported education, and their failure

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to afford them due process hearing and periodical review, cannot be excusedby the claim that there are insufficient funds. In Goldberg v. Kelly, 397U.S. 254 (1969) the Supreme Court, in a case that involved the right of awelfare recipient to a hearing before termination of his benefits, held thatConstitutional rights must be afforded citizens despite the greater expenseinvolved.... Similarly the District of Columbia's interest in educating theexcluded children clearly must outweigh its interest in preserving itsfinancial resources. If sufficient funds are not available to finance allof the services and programs that are needed and desirable in the system thenthe available funds must be expended equitably in such a manner that no childis entirely excluded from a publicly-supported education consistent with hisneeds and ability to benefit therefrom. The inadequacies of the District ofColumbia Public School System, whether occasioned by insufficient funding oradministrative inefficiency, certainly cannot be permitted to bear moreheavily on the 'exceptional' or handicapped child than on the normal child."

Regarding the appointment of a master the court commented, "Despitethe defendants' failure to abide by the provisions of the Court's previousorders in this case and despite the defendants' continuing failure to providean education for these children, the Court is reluctant to arrogate to itselfthe responsibility of administering this or any other aspect of the publicschool system of the District of Columbia through the vehicle of a specialmaster. Nevertheless, inaction or delay on the part of the defendants, orfailure by the defendants to implement the judgment and decree herein withinthe time specified therein will result in the immediate appointment of aspecial master to oversee and direct such implementation under the directionof this Court."

Specifically, the judgment contained the following:

1. "That no child eligible for a publicly-supported education in theDistrict of Columbia public schools shall ,be excluded from a regular publicschool assignment by a Rule, Policy or Practice of the Board of Educationof the District of Columbia or its agents unless such child is provided (a)adequate alternative educational services suited to the child's needs, whichmay include special education or tuition grants, and (b) a constitutionallyadequate prior hearing and periodic review of the child's status, progress,and the adequacy of any educational alternative."

2. An enjoiner to prevent the maintenance, enforcement or continuingeffect of any rules, policies and practices which violate the conditions setin one (above).

3. Every school age child residing in the District of Columbia shall beprovided H... a free and suitable publicly-supported education regardless ofthe degree of the child's mental, physical or emotional disability or impair-ment..." within thirty days of the order.

4. Children may not be suspended from school for disciplinary reasonsfor more than two days without a hearing and provision for his educationduring the suspension.

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5. Within 25 days of the order, the defendants shall present to thecourt a list of every additionally identified child with data about hisfamily, residence, educational status, and a list of the reasons for non-attendance.

6. Within 20 days of the order individual placement programs includingsuitable educational placements and compensatory education programs for eachchild are to be submitted to the court.

7. Within 45 days of the order, a comprehensive plan providing for theidentification, notification, assessment, and placement of the children willbe submitted to the court. The plan will also contain information about thecurriculum, educational objectives, and personnel qualifications.

8. Within 45 days of the order, a progress report must be submitted tothe court.

9. Precise directions as to the provision of notice and due processincluding the conduct of hearings.

Finally, Judge Waddy retained jurisdiction in the action "to allow forimplementation, modification and enforcement,of this Judgment and Decree asmay be required."

PENNSYLVANIA ASSOCIATION FOR RETARDED CHILDREN, Nancy Beth Bowman, et. al., v.

COMMONWEALTH OF PENNSYLVANIA, David H. Kurtzman, et. al., Civil Action No. 71-42(3 Judge Court, E. D. Pennsylvania).

In January, 1971, the Pennsylvania Association for Retarded Children(P.A.R.C.) brought suit against Pennsylvania for the state's failure to pro-vide all retarded children access to a free public education. In additionto P.A.R.C., the plaintiffs included fourteen mentally retarded children ofschool age who were representing themselves and "all others similarly situated,"i.e. all other retarded children in the state. The defendants included thestate secretaries of education and public welfare, the state board of educa-tion, and thirteen named school districts, representing the class of all ofPennsylvania's school districts.

The suit, heard by a three-judge panel in the Eastern District Court ofPennsylvania, specifically questioned public policy as expressed in law, pol-icies, and practices which excluded, postponed, or denied free access to publiceducation opportunities to school age mentally retarded children who couldbenefit from such education.

Expert witnesses presented testimony focusing on the following majorpoints:

1. The provision of systematic education programs to mentally retardedchildren will produce learning.

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2. Education cannot be defined solely as the provision of academicexperiences to children. Rather, education must be seen as a continuousprocess by which individuals learn to cope and function within their environ-ment. Thus, for children to learn to clothe and feed themselves is a legiti-mate outcome achievable through an educational program.

3. The earlier these children are provided with educational experiences,the greater the amount of learning that can be predicted.

A June, 1971 stipulation and order and an October, 1971 injunction, consentagreement, and order resolved the suit. The June stipulation focusedon the provision of due process rights to children who are or are thoughtto be mentally retarded. The decree stated specifically that no such childcould be denied admission to a public school program or have his educationalstatus changed without first being accorded notice and the opportunity of adue process hearing. "Change in educational status" has been defined as"assignment or re-assignment, based on the fact that the child is mentallyretarded or thought to be mentally retarded, to one of the following edu-cational assignments: regular education, special education, or to noassignment, or from one type of special education to another." The fulldue process procedure from notifying parents that their child is beingconsidered for a change in educational status to the completion of a formalhearing was detailed in the June decree. All of the due process procedureswent into effect on June 18, 1971.

The October decrees provided that the state could not apply any lawwhich would postpone, terminate, or deny mentally retarded children accessto a publicly-supported education, including a public school program, tui-tion or tuition maintenance, and homebound instruction. By October, 1971,the plaintiff children were to have been reevaluated and placed in programs,and by September, 1972, all retarded children between the ages of six andtwenty-one must be provided a publicly-supported education.

Local districts providing preschool education to any children arerequired to provide the same for mentally retarded children. The decreealso stated that it was most desirable to educate these children in a programmost like that provided to non-handicapped children. Further requirementsinclude the assignment of supervision of educational programs in institutionsto the State Department of Education, the automatic re-evaluation of all chil-dren placed on homebound instruction every three months, and a schedule thestate must follow that will result in the placement of all retarded childrenin programs by September 1, 1972. Finally, two masters or experts wereappointed by the court to oversee the development of plans to meet the require-ments of the order and agreement.

The June and October decrees were formally finalized by the court onMay 3, 1972.

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CATHOLIC SOCIAL SERVICES, INC., JIMMY, DEBBIE, et. al. v. BOARD OF EDUCATIONOF THE STATE OF DELAWARE, ROBERT McBRIDE, KENNETH C. MADDEN, et. al.

Catholic Social Services of Delaware as part of its responsibilitiesplaces and supervises dependent children in foster homes. In the processof trying to obtain educational services for handicapped children, theagency found "... the special education facilities in Delaware totally in-adequate."

The three children named in the suit included:

Jimmy, age 10, a child of average intelligence who has had emotionaland behavioral problems which from the beginning of his school career, indi-cated a need for special education. Although special education programplacement was recommended on two separate occasions, the lack of programsavailable prevented enrollment.

Debbie, age 13, has been diagnosed as a seriously visually handicappedchild of normal intelligence who, because of her handicap, could not learnnormally. She has had .a limited opportunity to participate in a specialeducation program, but as of September, 1971, none was available.

Johnnie, age 13, had for years demonstrated disruptive behavior inschool which led, because of his teachers' inability to "cope" with him,to be recommended for placement in an educational program with a smallstudent-teacher ratio, possibly in a class of "emotionally complex chil-dren." Until the time of the suit, he had not been able to receive suchtraining.

Adrian, age 16, had a long history of psychiatric disability whichprevented him from receiving public education. Following the abortiveattempts of his mother to enroll him in school, he was ultimately placedin a state residential facility for emotionally disturbed children. Thisplacement was made without psychological testing and with no opportunityfor a hearing to determine whether there were adequate school facilitiesavailable for him. Approximately one year later he was brought to theDelaware Family Court on the charge of being "uncontrolled," and after nojudgment as to his guilt or innocence, he was returned to the residentialschool on probationary status. If his behavior did not improve, as judgedby the staff, he could later be committed to the State School for DelinquentChildren. In July, 1970, the latter transfer was made without Adrian beingrepresented by counsel or being advised of this right. Since that time,Adrian has received "some educational service ... but little or no specifictraining."

The complaint quotes the Constitution and laws of Delaware that guaran-tee all children the right to an education; Delaware Code specifies that"The State Board of Education and the local school board shall provide andmaintain, under appropriate regulations, special classes and facilitieswherever possible to meet the need of all handicapped, gifted and talentedchildren recommended for special education or training who come from anygeographic area." Further, the code defines handicapped children as thosechildren "between the chronological ages of four and twenty-one who arephysically handicapped or maladjusted, or mentally handicapped."

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Because the respondents (Board of Education and others named in thecomplaint) have failed to provide the legally guaranteed education to thenamed children, the complaint urges that the respondents:

1. Declare that the petitioners have been deprived of rightful educa-tional facilities and opportunities.

2. Provide special educational facilities for the named petitioners.

3. Immediately conduct a full and complete investigation into thepublic school system of Delaware to determine the number of youths beingdeprived of special educational facilities and develop recommendations forthe implementation of a program of special education for those children.

4. Conduct a full hearing allowing petitioners to subpoena andcross-examine witnesses and allow pre-hearing discovery including inter-rogatories.

5. Provide compensatory special education for petitioners for theyears they were denied an education.

The three named plaintiffs were placed in education programs priorto the taking of formal legal action.

REID v. NEW YORK BOARD OF EDUCATION, Civil Action No. 71-1380 (U.S. DistrictCourt, S.D. New York)

This class action was brought to prevent the New York Board of Educationfrom denying brain-injured children adequate and equal educational opportunities.Plaintiffs alleged that undue delays in screening and placing these childrenprevented them from receiving free education in appropriate special classes,thus infringing upon their state statutory and constitutional rights, guaranteesof equal protection and due process under the fourteenth amendment.

In this 1971 case it was alleged that over 400 children in New York Citywere, on the basis of a preliminary diagnosis, identified as brain damaged,but could not receive an appropriate educational placement until they parti-cipated in final screening, it would take two years to determine the eligi-bility of all these children. An additional group of 200 children were foundeligible but were awaiting special class placement.

The plaintiffs further alleged that the deprivation of the constitutionalright to a free public education and due process operated to severly injurethe plaintiffs and other members of their class by placing them generally inregular classes which constituted no more than custodial care for these chil-dren who were in need of special attention and instruction. In addition, pro-viding the plaintiffs with one or two hours per week of home instruction isequally inadequate. It was further argued that if immediate relief was notforthcoming all members of the class would be irreparably injured becauseevery day spent either in a regular school class or at home delayed the startof special instruction.

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On June 22, 1971, Judge Metzner, of the U.S. District Court for theSouthern District of New York, denied the motion for a preliminary injunctionand granted the defendants' motion to dismiss. The Court applied the absten-tion doctrine, reasoning that since there was no charge of deliberate discrimin-ation, this was a case where the State Court could provide an adequate remedyand where resort to the federal courts was unnecessary.

On appeal, the Second Circuit Court of Appeals, ruling on the DistrictCourt order, on December 14, 1971 decided that federal jurisdiction shouldhave been retained pending a determination of the state's claims in theNew York State Courts. That determination is presently occurring.

JOHN DOE, et. al. v. MILWAUKEE, WISCONSIN BOARD OF SCHOOL DIRECTORS, et. al.(State of Wisconsin, Circuit Court, Civil Division, Milwaukee County)

The plaintiffs in this class action are represented by John Doe, a 14 yearold trainable mentally retarded student. The suit against the Milwaukee Boardof School Directors focused on the fact that although John Doe was tested by aschool board psychologist who determined that he was mentally retarded and inneed of placement in a class for the trainable mentally retarded, he was puton a waiting list for the program. It is alleged that this is a violation ofthe equal protection clause of the 14th amendment of the United States Cons titu-tion.

Plaintiffs argued that this violation occurred on two counts. First, JohnDoe, as a school age resident of the city of Milwaukee, is guaranteed an educa-tion by the Wisconsin constitution. It is pointed out that public education isprovided to "the great bulk of Milwaukee children... without requiring them tospend varying and indefinite amounts of time on waiting lists waiting for aneducation."

The second alleged violation occurred because, under the law, the schooldirectors are required "to establish schools sufficient to accommodate childrenof school age with various listed handicaps, including children with mental dis-abilities." It is further argued that at the same time of the complaint 400trainable mentally retarded children were attending such classes. Thus, bydenying the plaintiff participation in the program, the defendants are denyingthem equal protection of the law.

The plaintiffs sought:

1. A temporary order requiring immediate enrollment of plaintiffs in anappropriate class for trainable mentally retarded children.

2. An order enjoining the defendants from maintaining a waiting list thatdenies public education to those requiring special education.

A temporary injunction was ordered and the public schools were required toadmit the plaintiffs into the program for trainable mentally retarded childrenwith all reasonable speed which was defined as 15 days. This order delivered in1969 is still in effect.

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MARLEGA v. BOARD OF SCHOOL DIRECTORS, MILWAUKEE, WISCONSIN, Civil Action No.70-C-8 (U.S. District Court, Wisconsin)

This case, completed in 1970, was a class action suit with Douglas Marlegaas the named plaintiff. He brought suit against the board of school directorsof the public schools of Milwaukee on the basis of denial of constitutionallyguaranteed rights of notice and due process.

At issue was the exclusion of Marlega from public school attendancebecause of alleged medical reasons involving hyperactivity "...without affordingthe parents or guardians an opportunity to contest the validity of the exclusiondetermination." Marlega, of average intelligence, was completely excluded fromFebruary 16, 1968, to October 7, 1968. His parents were not given justificationfor the exclusion, nor were they given any opportunity for a due process hearing.Throughout the period of exclusion, " .. no alternative public schooling isfurnished on a predictable basis" and "no periodic review of the condition ofexcluded students is apparently made nor is home instruction apparently providedon a regular basis."

The following was sought by the plaintiff:

1. a temporary restraining order to reinstate Marlega and his class inschool;

2. an order to defendants to provide the plaintiffs a due process hearing;and

3. an order to prevent the board of school directors of Milwaukee fromexcluding any children from school for medical reasons without first providingfor a due process hearing except in emergency situations.

A temporary restraining order was awarded on January 14, 1970. On March16, 1970, the Court ordered that no child could be excluded from a free publiceducation on a full-time basis without a due process hearing. The school direc-tors submitted to the court a proposed plan for the handling of all medicallyexcluded children which was approved on September 17, 1970.

FRED C. WOLF, et. al. v. THE LEGISLATURE OF THE STATE OF UTAH Civil Action No.182646 (Third Judicial District Court, Utah).

A 1969 ruling in the Third Judicial Court of Utah guaranteed the right toan education at public expense to all children in the state. This action wasbrought on behalf on two trainable mentally retarded children who were theresponsibility of the State Department of Welfare. The children were not beingprovided with suitable education. The judge, in his opinion, stated that theframers of the Utah constitution believed "in a free and equal education for allchildren administered under the Department of Education." He further wrote that"the plaintiff children must be provided a free and equal education within theschool districts of which they are residents, and the state agency which issolely responsible for providing the plaintiff children with a free and publiceducation is the State Board of Education."

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MARYLAND ASSOCIATION FOR RETARDED CHILDREN, LEONARD BRAMBLE, et. al. v. STATEOF MARYLAND, et. al. Civil Action No. 72-733-K (U.S. District Court, Districtof Maryland)

A class action suit is being brought by the Maryland Association for Re-tarded Children and 14 mentally retarded children against the state of Marylandand its state board of education, state superintendents of education, secretary ofhealth and mental hygiene, director of the mental retardation administration, super-intendents of state institutions, commissioner of the mental health administration,and local boards of education for their failure to provide retarded or otherwisehandicapped children with an equal and free public education.

The 14 plaintiff children range from those classified as severely retardedto the educable. The majority of the children, whether living at home or in aninstitution, are not receiving an apprOpriate education with some children

being denied any education to those inappropriately placed in regular educationprograms. For example, two educable children, residing in Baltimore city, havebeen placed and retained in regular kindergarten programs because they are notyet eight years old though their need for a special class placement has been

recognized.

The complaint emphasizes the importance of providing all persons with aneducation that will enable them to become good citizens, achieve to the fullextent of their abilities, prepare for later training, and adjust normallyto their environment. It is further argued that "the opportunity of an educa-tion, where the state has undertaken to provide it, is a right that must bemade available to all on equal terms."

The contention of the plaintiffs is indicated in the following:

"There are many thousands of retarded and otherwise handicapped school-agechildren (children under age 21) in the state of Maryland. Defendants denymany of these children (including each of the individual plaintiff childrenherein) free publicly-supported educational programs suited to their needs,and for transportation in connection therewith.

"More specifically, defendants deny such educational programs to manychildren who are retarded, particularly to those who are profoundly or severelyretarded, or who are multiply disabled; or who are not ambulatory, toilettrained, verbal, or sufficiently well behaved; or who do not meet requirementsas to age not imposed on either normal or handicapped children comparablysituated. As a result of their exclusion from public education, the plaintiffchildren's class (including plaintiffs) must either (a) remain at home withoutany educational programs; or (b) attend nonpublic educational facilitiespartly or wholly paid for by their parents; or (c) attend 'day care' programsthat are,not required to provide structured, organized, professionally runprograms of education; or (d) seek placement in public or nonpublic residentialfacilities, partly or wholly paid for by their parents, which do not providesuitable educational programs for many of these children.

"Like children for whom defendants provide suitable publicly-supportededucational programs, including other retarded and otherwise handicapped chil-dren, the plaintiff children's class can benefit from suitable educational pro-

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grams. The defendants' failure to provide these children with publicly-supportededucational programs suited to their needs is arbitrary, capricious, and invidi-ously discriminatory and serves no valid state interest. The denial of such pro-grams violated the plaintiffs' rights under the Due Process and Equal ProtectionClauses of the Fourteenth Amendment to the Constitution of the United States."

The plaintiffs allege that the state's tuition assistance programprovides insufficient funds to educate these children and thus parentsare forced to use their own resources. "Thus, defendants have conditionedthe education of these children on their parents' ability to pay. That

action is arbitrary, capricious, and invidiously discriminatory, servesno valid state interest; and violates the said plaintiffs rights underthe due process and equal protection clauses of the Fourteenth Amendment...."

Another allegation is that the state when making placement decisionsdoes not provide for notice and procedural due process.

The plaintiffs are seeking:

1. Declaration that the "unequal imposition of charges for programsfor school-age children at state institutions are (is) unconstitutional."

2. Declaration that the provision of unequal amounts of tuitionmoney depending on the category of handicap is unconstitutional.

3. Enjoiner to prevent the defendants from violating the due pro-cess and equal protections clauses of the Fourteenth Amendment includingproviding free publicly-supported education to plaintiff children andtheir class within 60 days of the order and a number of other action stepsinvolving the identification of children, advertising the availability ofprograms, creating hearing and other due process procedures, planning,and reporting back to the court. The plaintiffs also asked the courtto require that any public institutional or day care program in whicha child is placed be structured to meet individual children's needsunder "standards and criteria reasonably calculated to insure that theProgram provided is in fact a suitable program of education." They arealso seeking compensatory education for the plaintiff children and theclass they represent who were excluded or excused from school becauseof a physical, mental, emotional, or behavioral handicap. Finally,they seek appointment of a master.

This action was introduced on July 19, 1972, and is expected to beheard this fall.

NORTH CAROLINA ASSOCIATION FOR RETARDED CHILDREN, INC., JAMES AUTEN MOORE,et. al. v. THE STATE OF NORTH CAROLINA, Civil Action No. 72-72 (E.D. NorthCarolina, Raleigh Division)

On May 18, 1972, a suit was introduced in the Raleigh Division .ofthe Eastern District Court of North Carolina by the North Carolina Associ-ation for Aetarded Children, Inc. and thirteen mentally retarded children

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against the state of North Carolina, various state agencies and theirdepartment heads, a city school district, and a county school districtfor failure to provide free public education for all of the state's esti-mated 75,000 mentally retarded children.

The class action suit names thirteen severely and moderately mentallyretarded children as plaintiffs. The children's histories include neverhaving been in public school, having been excluded from public school,delayed entrance into public school programs, or in some cases receivingan education through private programs at their parents' expense. Plaintiffchildren who had been receiving a public education were excluded becauseof alleged lack of facilities or failure of the children to meet certainbehavioral criteria such as toilet training. In summary, the suit is beingbrought on behalf of "residents of North Carolina, six years of age andover, who are eligible for free public education but who have by thedefendants (1) been excluded, or (2) been excused from attendance at publicschools, or (3) had their admission postponed, or (4) otherwise have beenrefused free access to public education or training commensurate withtheir capabilities because they are retarded.

The defendants include the state, the state superintendent of publiceducation, the department of public education, the state board of education,the department and the secretary of the department of human resources, thecommissioner and the state board and the state department of mental health,the treasurer and the department of the state treasurer, the state disburs-ing officer and the controller of the state board of education, the Wake

board of education, the Raleigh city board of education, and the Wake County boardof commissioners. The two school districts are names as typical of all of thestate's local city or county education agencies. The board of county commissionersis also named as representative of all of the state's county boards that "havethe authority and duty to levy taxes for the support of the schools."

Plaintiffs' attorneys quote the North Carolina constitution which pro-vides that "equal opportunities shall be provided for all students for freepublic school education." Further support for the legal obligations of thestate to provide for the education of the mentally retarded comes from thefollowing section of a 1967 North Carolina attorney general's opinion:

"It is unconstitutional and invalid, therefore, to operatethe public school system in a discriminatory manner as

against the mentally retarded child and to allocate fundsto the disadvantage of the mentally retarded child. Oftena mentally retarded child develops fair skills and abilitiesand becomes a useful citizen of the state but in order to dothis, the mentally retarded chils must have his or her chance."

The complaint specifically alleges that the school exclusion laws(G.S. Sec. 115-165) deprive the plaintiffs of the equal protection of the lawin voilation of the 14th amendment of the U.S. Constitution in the followingmanner:

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1. Discriminates between handicapped and non-handicapped childrenby allowing a county or city superintendent of schools to decide that a"Child cannot substantially profit from the instructions given in the pub-lic school as now constituted and as such discriminates against the severelyafflicted by mental, emotional or physical incapacity children in favor ofthose children who are not so afflicted in that these unfortunate childrenare deprived of any and all educational training whereas the children whodo not fall in this classification or category obtain complete free publiceducation."

2. "Arbitrarily and capriciously and for no adequate reason" deniesmentally retarded children educational opportunities to become self-sufficientand contributing citizens as guaranteed by the North Carolina constitutionand laws and further "subjects them to jeopardy of liberty and even of life."

3. Denial of the plaintiff children from attendance in public schoolsimposes the unfair criterion of family wealth as the determining factor oftheir receiving an education. In effect, children from poor families areunable to obtain private education as can children from financially ablefamilies.

4. Plaintiffs' parents, although paying taxes for the support ofpublic schools, are unable to have their children admitted and thus inorder to obtain an education for them must pay additional funds.

Other counts included in the complaint are as follows:

1. In the implementation of the school attendance law plaintiffsare denied procedural due process of law as guaranteed in the 14th amendmentof the U.S. Constitution including provisions for notice, hearing, andcross examination.

2. The North Carolina statute requiring parents to send their childrento school contains an exception which relieves parents of children "afflictedby mental, emotional, or physical incapacities so as to make it unlikely thatsuch child could substantially profit by instruction given in the publicschools" from this responsibility. Plaintiffs argue however that this statutewhich is "to forgive what otherwise would be violations of compulsory attend-ance requirements and to preserve to the parents the decision of whether thechild shall attend school" is in fact used to "mandate non-attendance contraryto parents' wishes and thus justify the exclusion of retarded children fromthe public schools in violation of their constitutional rights."

3. The defendants have ignored the law that all children are eligiblefor public school enrollment at age six and have excluded retarded childrenuntil they are older.

4. In addition to preventing thepublic schools, the defendants also arepone admission to public schools and tostate schools, hospitals, institutions,retarded.

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enrollment of plaintiff children inalleged to exclude, excuse, and post-provide education for children atand other facilities for the mentally

The suit seeks the following remedies:

1. Declaration that all relevant statutes, policies, procedures, andpractices are unconstitutional.

2. Permanently enjoin the defendants from the practices describedas well as "giving differential treatment concerning attendance at schoolto any retarded child."

3. A permanent injunction requiring that the defendants operateeducational programs for the retarded in schools, institutions, and hos-pitals, and, if necessary, at home with all costs being charged to the respons-ible public agency.

4. A permanent mandatory injunction directing the defendants to providecompensatory years of education to each retarded person who has been excluded,excused, or otherwise denied the right to attend school while of school ageand further enjoin the defendants to give notice of the judgment herein to theparents or guardians of each such child.

5. Provision to the plaintiffs the cost of the suit including "reasonablecounsel fees."

On July 31, 1972, an expanded complaint was filed naming in addition to theNorth Carolina Association for Retarded Children, 22 plaintiff children. Thenew complaint joins the original North Carolina Association for Retarded Childrensuit with Crystal Rene Hamilton v. Dr. J. Iverson Riddle, Superintendent ofWestern Carolina Center, et. al. (Civil Action No. 72-86). The additionalplaintiffs include children whose histories permitted the addition of the fol-lowing allegations regarding the state's failure to provide for their education:"... who have by the defendants ... (5) been denied the right of free home-bound instruction or (6) been denied the right of tuition or costs reimburse-ment in private schools or institutions or (7) been denied the right of freeeducation, training or habilitation in institutions for mentally retardedoperated by the State of North Carolina."

A further distinction is the allegation that there are state statuteswhich operate to grant "aid to the mentally retarded children below the ageof six years in non-profit private facilities for retarded children andexcluding such aid to mentally recarded children above six years attendingthe same type of institutions."

It is further alleged that the defendants further "failed to provide forappropriate free education, training and habilitation of the plaintiffs in theirhomes after excluding the plaintiffs from free education and training in thepublic schools and thus condition the plaintiffs education in the homes uponthe impermissable criteria of wealth, denying training, education, and'habili,tation to those children whose parents are poor."

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In the expanded suit an additional count has been introduced that focuseson the state institutions for the mentally retarded. Specifically, it is

alleged that the centers for the retarded are "warehouse institutions which,because of their atmosphere of psychological and physical deprivation, theinstitutions are wholly incapable of furnishing habilitation to the mentallyretarded and are conducive only to the deterioration and the debilitation ofthe residents." It is also charged that the institutions are understaffed,overcrowded, unsafe and do not provide residents with "education, training,habilitation, and guidance as will enable them to develop their ability andmaximum potential."

The plaintiffs are seeking in addition to the remedies originally soughtthe granting of a permanent injunction:

1. to prevent the defendants from denying the right of any retardedchild of six years and older to free homebound instruction;

2. to prevent the defendants from denying the reimbursement of tuitionand costs to the parents of retarded children in private schools or facilities;

3. to direct the defendants to establish publicly-supported trainingprograms and centers for all mentally retarded children without discrimination;

4. to direct the defendants "to provide such education, training andhabilitation outside the public schools of the district or in special institu-tions or by providing for teaching of the child in the home if it is notfeasible to form a special class in any district or provide any retarded childwith education in the public schools of the district ..."

CRYSTAL RENE HAMILTON v. DR. J. IVERSON RIDDLE, SUPERINTENDENT OF WESTERNCAROLINA CENTER, Civil Action No. 72-86 (Charlotte Division, W.D. of NorthCarolina)

This case was filed on May 5, 1972, in the Charlotte Division of theWestern District Court of North Carolina as a class action on behalf of allschool age mentally retarded children in North Carolina. Defendants includethe superintendent of the Western Carolina Center, a state institution for thementally retarded; the secretary of the North Carolina department of humanresources; the state superintedent of public instruction; and the chairman ofthe Gaston County board of education.

Crystal Rene Hamilton is an eight year old mentally retarded child whoon November 1, 1971, when admitted to the Western Carolina Center had until that timereceived only nine hours of publicly-supported training. She was admitted to the

Center "under the provision that she would be able to remain in said Centerfor a period of only six months, after which time it would be necessary forher to return to her home and be cared for by her parents; that she has beendiagnosed as a mentally retarded child and needs a one-to-one ratio of careand treatment." The complaint alleges that the parents are unable to pro-vide "this care and treatment," that the state does not have other facilitiesto provide the care and the Center administrator has notified Crystal's parentsto take her home.

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The cause of action cited in the complaint is that the state, through itsboard and agencies, "has failed to provide equal educational facilities for theplaintiff and has denied to her access to education and training ..." Thusit is alleged that the plaintiff has been denied equal protection of thelaw and equal education facilities as "guaranteed" by the United States consti-tution and the constitution and statutes of North Carolina. The statute "guar-antees equal free educational opportunities for all children of the state betweenthe ages of six and twenty-one years of age."

Also at issue is the classification scheme used by the state which "selectssome students as eligible for education and some as not ..." Further, the com-plaint argues that the state's practice of making financial demands upon theparents of mentally retarded children for the care and treatment of their chil-dren" ... is repugnant to the provision of the law and'is denying equal pro-tection to said children..."

Arguing that Crystal Rene Hamilton and the members of her class havesuffered and are now suffering irreparable injury, the plaintiffs are seekingthe following relief:

1. A three-judge court be appointed to hear the case;

2. Enforcement of state statutes providing equal educational opportun-ities and declare null and void statutes that do otherwise;

3. An injunction be issued to prevent the Western Carolina Center fromevicting Crystal Rene Hamilton;

4. That this action be joined with civil action No. 72-72 (North CarolinaAssociation for Retarded Children, Inc., James Auten Moore, et. al. v. The Stateof North Carolina, et. al.); and

5. Plaintiff costs and counsel fees.

This case has been joined as requested in number 4 above. The number ofplaintiffs has been expanded and the case is expected to be heard by a three-judge court within a month.

BENJAMIN HARRISON, THE COALITION FOR THE CIVIL RIGHTS OF HANDICAPPED PERSONSet. al., v. STATE OF MICHIGAN, et. al. Civil Action No. 38357 (E. D. MichiganSouthern Division)

On May 25, 1972, the Coalition for the Civil Rights of Handicapped Per-sons, a non-profit corporation formed to advance the rights of handicappedchildren, and twelve handicapped children filed suit in the Southern Divi-sion of the United States District Court for the Eastern District of Michi-gan against the state of Michigan, the department of education, the depart-ment of mental health, the Detroit school board and officers, and the WayneCounty intermediate school district and its officers' for their failure toprovide a publicly-supported education for all handicapped children ofMichigan.

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The suit seeks class action status and divides the plaintiff children,'611 of whom are alleged to have mental, behavioral, physical or emotional

handicaps, into the three distinct groups:

1. Children denied entrance or excluded from a publicly-supported

education;

2. Children who are state wards residing in institutions receiving

no education;

3. Children placed in special programs but that are alleged not tomeet their learning needs.

The plaintiff children present a full range of handicapping conditionsincluding brain damage, mild, moderate, or severe mental retardation, autism,emotional disturbance, cerebral palsy, and hearing disorders. The complaintsuggests that the children named represent a class of 30,000 to 40,000 whoare handicapped three times over. They are first handicapped by their in-herited or acquired mental, physical, behavioral, or emotional handicap.Secondly "by arbitrary and capricious processes by which the defendantsidentify, label, and place them, and finally by their exclusion from accessto all publicly-supported education."

The complaint argues that the right of these children to an educationis based on Michigan law stating that "the legislature shall maintain andsupport a system of free public elementary and secondary schools as defined

by law." Further, Article VIII, Section 8 of the Michigan Constitution indi-cates that the state shall foster and support "institutions, programs, andservices for the care, treatment, education, or rehabilitation of thoseinhabitants who are physically, mentally, or otherwise seriously handicapped."

Further, as in all of the right to education litigation, the role ofeducation in preparing children to be productive adults and responsiblecitizens is emphasized and can be summarized by this quote: "No child canreasonably be expected to succeed in life if he is denied the opportunity

of an education."

Of importance in this suit is that recognition is given in the complaintto a mandatory special education law effective July 1, 1972. However, since

that law will not be fully implemented until the 1q73-74 school year, theplaintiffs are presently being denied rights. In addition, it is pointedout that the mandatory act does not provide for compensatory educationor the right to hearing and review as the educational status and/or class-ification of the children is altered.

The complaint seeks the following relief:

1. That the acts and practices of the defendants to exclude plaintiffchildren and the class they represent from and adequate publicly-supportededucation is a violation of due process of law and equal protection underthe 14th amendment of the U.S. Constitution.

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2. That the defendants be enjoined in continuing acts and practiceswhich prevent plaintiffs from a regular public school education withoutproviding (a) adequate and immediate alternatives and (b) a constitutonallyadequate hearing and review process.

3. That plaintiffs and all members of the class be provided with apublicly-supported education within 30 days of the entry of such an order.

4. That within 14 days of the order defendants present to the courta list which includes the name of each person presently excluded from apublicly supported education and the reason, date, and length of his expul-sion, suspension, exclusion, or other type of denial.

5. That parents or legal guardian of each named person be informedwithin 48 hours of the submission of that report of the child's rights toa publicly-supported education and his proposed placement.

6. That within 20 days of the entry of the order all parents inMichigan be informed that all children, regardless of their handicap oralleged disability, have a right to an education and the procedures avail-able to enroll these children in programs.

7. That constitutionally adequate hearings on behalf of a person

appointed by the court be conducted for any member of the plaintiff classwho is dissatisfied by the education placement.

8. That plaintiffs be provided with compensatory services to over-come the effects of wrongful past exclusion.

9. That within 30 days from the entry of the order a plan for hear-ing procedures regarding refusal of public school admission to any child,the reassignment of the child to a regular public school and the reviewof such decisions be submitted to the court.

10. That within 30 days from the entry of the order a plan for adequatehearing procedures regarding suspension or expulsion of any student from schoolbe submitted to the court.

11. Grant other relief as necessary including payment of attorney fees..

ASSOCIATION FOR MENTALLY ILL CHILDREN (AMIC), LORI BARNETT, et. al., v. MILTONGREENBLATT, JOSEPH LEE, et. al., Civil Action No. 71-3074-J (Massachusetts)

This class action suit is being brought by emotionally disturbed childrenagainst officers of the Boston school system, all other educational officersin school districts throughout the state, and the Massachusetts state depart-ments of education and mental health for the alleged "arbitrary and irrationalmanner in which emotionally disturbed children are denied the right to aneducation by being classified emotionally disturbed and excluded both fromthe public schools and an alternative education program."

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Lori Barnett, an eight year old child classified as emotionally disturbed,has never been provided with a public education by the Commonwealth. The

situation has persisted even though she has sought placement in both theBoston special education program and residential placement in a state-approved

school.

The suit specificallyicharges that as of July, 1971, a minimum of 1,371emotionally disturbed children, determined by the Commonwealth as eligiblefor participation in appropriate educational programs, were denied such ser-

vices. Instead they were placed and retained on a waiting list "for a sub-

stantial period of time." Although some of the children were receiving homeinstruction, this is not considered to be an appropriate program.

Secondly, it is alleged that the plaintiff children are denied place-ment in an arbitrary and irrational manner, and no standards exist on stateor local levels to guide placement decision in either day or residential pro-

grams. It is argued that, in the absence of state standards, the placementof some students while denying placement to others similarly situated violatesthe plaintiffs' rights of due process and equal protection.

Another issue in this case concerns the allegation that the plaintiffchildren are denied access to appropriate educational programs without ahearing thus violating their rights to procedural due process.

Finally, it is charged that the failure to provide the plaintiff chil-dren with an education, solely because they are emotionally disturbed "...irrationally denies them a fundamental right, to receive an education and tothereby participate meaningfully in a democratic society, in violation of thedue process and equal protection clauses of the Fourteenth Amendment to the

U.S. Constitution."

Declaratory judgment is sought to declare unconstitutional excluding ordenying an emotionally disturbed child from an appropriate public educationprogram for which he is eligible without a hearing. Also sought is a judg-

ment of unconstitutionality regarding the denial of placement to eligibleemotionally disturbed children in the absence of "... clear and definiteascertainable standards established for admission to that program;" therefusal of placement to eligible children in programs while similarly situatedchildren are admitted to such programs; and the denial of education to a childsolely because he is emotionally disturbed. Permanent injunction is alsosought to prevent the defendants from violating plaintiffs' rights. Finally,

an order is requested to require the defendants to prepare a plan detailinghow the plaintiffs' rights will be fully protected and to appoint a masterto monitor development and implementation of the plan.

The case is pending in the United States District Court for the Districtof Massachusetts.

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MINDY LINDA PANITCH, et. al., v. STATE OF WISCONSIN, CIVIL Action No. 72-L-461(U.S. District Court, Wisconsin)

This suit is being brought against the state by Mindy Linda Panitch asrepresentative of a class of children "who are multi-handicapped, educablechildren between the ages of four and twenty years, whom the state of Wisconsinthrough local school districts and the department of public instruction ispresently excluding from, and denying to, a program of education and/or train-ing in the public schools or in equivalent educational facilities.",

The issue in this action is a Wisconsin statute and policy enabling handi-capped children to attend "a special school, class or center" outside the state.When this occurs and depending upon the population of the child's residence,either the county or school district is required to pay the tuition and trans-portation. The policy limits the enrollment of children under this act to"public institutions." The rationale is that "constitutional and statutorylimitations preclude in-state handicapped pupils attending private educationalfacilities and receiving the benefits of tuition. This policy maintains aconsistency of treatment for out-of-state school attendees as well. Experiencewith the program to date has indicated that the potential costs accruing tocounties in utilizing both public and private facilities would be a prohibitivefactor. Similarly, the department lacks sufficient staff, resources, andauthority to assess the adequacy of private school facilities."

The complaint alleges that the plaintiff and members of the class aredenied equal protection of the laws since the "defendant does not, eitherthrough local school districts or the department of public instruction, provideany facility within the state to provide an education and/or training to plain-tiff and other members of the class." This violation of the laws, it isalleged, occurs even though special education programs are available outsidethe state.

The relief sought includes:

1. the declaration that the statute and policy referred to above areunconstitutional and invalid;

2. direction from the court to the defendant to provide to the plaintiffand other members of the class "... a free elementary and high school education;and

3. all plaintiff costs.

To date, that state has not answered the complaint.

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LORI CASE, et. al. v. STATE OF CALIFORNIA, DEPARTMENT OF EDUCATION, et. al.,Civil Action No. 101679 (California Superior Court, Riverside County).

Lori Case is a school age child who has been definitively diagnosed asautistic and deaf and who may also be mentally retarded. After unsuccessfullyattending a number of schools, both public and private for children with avariety of handicaps, Lori was enrolled in the multi-handicapped unit at theCalifornia School for the Deaf at Riverside, California. Plaintiff attorneysmaintain that this unit was created specifically to educate deaf children with

if one or more additional handicaps requiring special education. Lori beganattending the school in May 1970, and is alleged to have made progress - apoint which is disputed by the defendants. The plaintiffs argue that to excludeher from Riverside would cause regression and possibly nullify forever anyfuture growth. As a result of a case conference called to discuss Lori'sstatus and progress in school, it was decided to terminate her placement on thegrounds that she was severely mentally retarded, incapable of making educationalprogress, required custodial and medical treatment, and intensive instructionthat could not be provided by the school because of staffing and program limita-tions.

The plaintiffs sought an immediate temporary restraining order and a pre-liminary and permanent injunction restraining defendants from preventing, pro-hibiting, or in any manner interfering with Lori's education at Riverside. Atemporary restraining order and a preliminary injunction were granted by theSuperior Court of the State of California for the County of Riverside.

The arguments presented by the plaintiffs are those seen in other "rightto education" cases. The question of the definition of education or educabilityis raised. The plaintiff attorneys state that "if by 'uneducable' defendantsmean totally incapable of benefiting from any teaching or training program, thenplaintiffs are in agreement, but defendants' own declaration demonstrate thatLori is not uneducable in this sense. However, if by 'educable' defendantsmean 'capable of mastering the normal academic program offered by the publicschools,' then defendants are threatening to dismiss Lori on the basis of apatently unconstitutional standard. Application of such a narrow and exclusion-ary definition, in view of the extensive legislative provisions for programsfor the mentally retarded, the physically handicapped, and the multi-handicappedwould clearly violate both Lori's rights to due process and equal protection.The right to an education to which Lori is constitutionally entitled is theright to develop those potentials which she has."

Assuming acceptance of Lori's educability, the attorneys argue that"there is absolutely no distinction in law, or in logic, between a handicappedchild and a physically normal child. Each is fully entitled to the equal pro-tection and benefits of the laws of this State. Thus, to deprive Lori of herright to an education ... would violate her fundamental rights."

The issue raised by the defendants regarding staffing and program limita-tions was answered by pointing out that the courts have ruled that the denialof educational opportunity solely on the basis of economic reasons is nor justi-fiable. And finally the manner in which the disposition of Lori's enrollment

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at the school was determined was "unlawful, arbitrary and capricious and consti-tuted a prejudicial abuse of discretion." It is pointed out that Lori's rightto an education "... must be examined in a court of law, offering the entire

panoply of due process protections ..."

The case was filed on January 7, 1972, and a temporary restraining orderwas granted the same day. A preliminary injunction was granted on January 28,

1972. Plaintiffs' first set of interrogatories were filed on March 10, 1972,and a trial date set for May 8, 1972. Trial was held on September 5, 1972. Adecision is expected in the near future.

MICHAEL BURNSTEIN, FRED POLK, et. al. and ALAN MILLER, JONATHAN BOOTH,et. al. v. THE BOARD OF. EDUCATION AND THE SUPERINTENDENT OF THE CONTRACOSTA COUNTY SCHOOL DISTRICT (California Superior Court, Contra CostaCounty).

The plaintiff children are described as autistic for whom inappropriateor no public education programs have been provided. Thus, there are within

this suit two sets of petitioners and two classes. The first class includesautistic children residing in Contra Costa County, California, who havesought enrollment in the public schools but were denied placement because no

educational program was available. The second class of petitioners includesfive children also residing in Contra Costa County and classified as autistic.These children have been enrolled in public special education classes butnot programs specifically designed to meet the needs of autistic children.

The complaint alleges that no services were provided to any of thechildren named until the plaintiffs in October, 1970, informed the defendants

that "they were in the process of instituting legal action to enforce theirrights to a public education, pursuant to the laws of the state of Californiaand the Constitution of the United States." The children named in the second

class were placed in special education programs, but as indicated, not aprogram designed specifically to meet their needs.

It is argued in the brief that "education for children between the agesof six and sixteen is not a mere privilege but is a legally enforceableright" under both the state laws of California and the United States. Further,

it is pointed out that specialized programs to meet the needs of autisticchildren are required to enable these children to participate fully in allaspects of adult life. It is also indicated that autistic children areeducable and that when they are provided with appropriate programs theycan become qualified for regular classroom placement.

Based on the allegation that the petitioners have been denied theirrights to an education by the school board who, although knowing of theirrequest for enrollment in programs, "wrongfully failed and refused and con-tinued to fail and refuse..." enrollment, the petitioners request the courtto command the school board "to provide special classes and take whateverother and further steps necessary to restore to petitioners the right to aneducation and an equal educational opportunity..."

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The arguments presented by the attorneys for the petitioners justify ona variety of legal bases their rights to publicly-supported educationalopportunities. In addition to citing the equal protection provisions of boththe United States and California Constitutions, it is also pointed out that"denial of a basic education is to deny one access to the political processes.Full participation in the rights and duties of citizenship assumes and requireseffective access to the political system..." Further, the attorneys argue that"one may be denied his economic rights through denial of an education." Inaddition, the petitioners are not only denied the same educational benefitsas non-handicapped children, but also are denied that which is provided toother school-age children suffering from mental or physical disabilities.Finally, the attorneys provide an argument that refutes the frequentlyused high cost rationale for the denial of special education programs. Theysay that "granting an education to some while denying it to others is blatantgrounds that providing one with rights to which he is entitled but unlawfullydenied will result in additional expense. If the respondent in this case isunable to receive funding for the required classes from the state, it isincumbent on it to reallocate its own budget so as to equalize the benefitsreceived by all children entitled to an education:"

This case is presently expected to go before the Superior Court of theState of California in and for the County of Contra Costa in November orDecember, 1972.

TIDEWATER ASSOCIATION FOR AUTISTIC CHILDREN v. COMMONWEALTH OF VIRGINIA, et.al. Civil Action No. 426-72-N, (U.S. District Court, E. D. Virginia)

In August, 1972, suit was entered in the Norfolk Division of the U.S.District Court for the Eastern District of Virginia on behalf of the classof autistic children who as plaintiffs against the state of Virginia andthe state board of education for their alleged legal right to be providedwith a free public program of education and training appropriate to eachchild's capacity.

The complaint is based upon the "basic premise" that "... the class ofchildren which the plaintiff seeks to represent are entitled to an educationand that they have a right under the United States Constitution to developsuch skills and potentials which they, as a handicapped child, might haveor possess. The plaintiff asserts that to deny an autistic child a rightto an education is a basic denial of their fundamental rights."

It is also charged in the complaint that discrimination is beingpracticed against autistic children "since they are educable and no suitableprogram of training or education is available for them." It is also pointedout that the state has wrongfully failed to provide a program for these chil-dren on the basis that "there is not enough money available." The complaintalso contains a history of the state's failure to establish pilot programsfor approximately 22 children in the Tidewater Virginia area. After therequest for funds from the state was reduced from $100,000 to $70,000, thestate appropriated $20,000 to serve seven children in the four to seven yearage range. Finally, it is alleged that if the requested relief is not granted,there are teen-age members of class" ... who *All not have an opportunity toreceive any training or education whatsoever."

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Specifically, the relief sought includes:

1. Granting of declaratory judgment that the practices alleged in thecomplaint violate the Fourteenth Amendment of the U.S. Constitution.

2. Immediate establishment of free and appropriate programs of educationand training geared to each child's capacity.

3. "Determine that each and every child, regardless of his or hermental handicap, is entitled to the equal protection of the law and a rightto an education in accordance with the child's capacity."

4. Awarding of court and attorney fees to the plaintiffs.

On the 7th of September, the Commonwealth of Virginia submitted to theCourt a motion to dismiss the suit for the following reasons:

1. "Plaintiff fails to state a claim upon which relief may be granted."

2. Suits may not be filed against the Commonwealth of Virginia.

3. The complaint should first be heard by a state rather than a federalcourt.

CRAIG UYEDA v. CALIFORNIA STATE SCHOOL FOR THE DEAF AT RIVERSIDE, et. al.(California)

In June, 1972, suit was initiated by the mother of Craig Uyeda, a pro-foundly deaf 10-year old boy against the California School for the Deaf atRiverside and its superintendent, Dr. Richard Brill for an alleged violationof the child's civil rights.

Craig, a child described as being "exceptionally bright" had been placedin the Riverside program since January, 1968. In May of 1972 the parents wereinstructed to take Craig home because of "emotional and frustration problems."The parents contend that if these problems are present it is even more neces-sary that Craig be retained in Riverside since there is a program there spe-cifically designed for children with multiple learning problems.

This action, similar to Lori Case, et. al. v. State of California Depart-ment of Education, et. al., is presently pending waiting the selection of atrial date.

SETH KIVELL, P.P.A. vs. DR. BERNARD NEMOITIN, et. al., No. 143913, (SuperiorCourt, Fairfield County at Bridgeport, Connecticut).

In a Memorandum of Decision issued by Superior Court Judge Robert J.Testo, on July 18, 1972, the mother of 12-year old Seth Kivell, "a percep-tually handicapped child with learning disabilities" was awarded $13,400 to

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pay for the out-of-state private education the child received for two yearswhen it was held that the defendant Stamford, Connecticut, Board of Educationdid not offer an appropriate special education program for him.

The suit was brought by the mother of Seth Kivell when the child wasinitially classified by a Stamford Public School diagnostic team as a childin need of special education. The same team recommended a program to theparents who, on the basis of an independent evaluation and recommendationby a consulting psychologist transferred Seth to an out-of-state privateschool. The parents pursued their alleged rights through a local boardhearing at which their appeal was denied and a state board hearing. Aftera state investigation, the state commissioner of education agreed with theplaintiff that the program offered for that year would not have met the child'sneeds. The commissioner indicated that if the Stamford board reversed itsdecision and assumed the tuition costs, the state under existing statuteswould reimburse the district. This course was rejected by the Stamfordboard. The commissioner then ordered the district to submit a plen for hisapproval for the provision of appropriate special education services. Such

a plan was approved and the parents were notified approximately two monthsafter the start of the second school year for which the judgment applied.

Judge Testo wrote after reviewing the state's statutory obligation tohandicapped children that "it is abundantly clear from the statutes that theregulation and supervision of special education is within the mandatoryduty of the state board of education and that the local town board is itsagent charged with the responsibility of carrying out the intent of the lawwhich the minor needs and is entitled to."

An order was also issued "directing the Stamford Board of Education andSuperintendent of Schools of said City to furnish the minor with the specialeducation required by the statutes of this State. Compliance of this ordershall mean the acceptance and approval by the State Board of Education of theprogram submitted by the local board of education."

It is worthy of note that the judge anticipated that on the basis ofhis decision a multitude of similar suits might be filed. Consequentlyhe stated that "this court will frown upon any unilateral action by parentsin sending their children to other facilities. If a program is timely filedby a local board of education and is accepted and approved by the state boardof education, then it is the duty of the parents to accept said program. Arefusal by the parents in such a situation will not entitle said child to anybenefits from this court."

IN RE HELD, Docket Nos. H-2-71 and H-10-71, N.Y. FAMILY COURT, WESTCHESTERCOUNTY, NEW YORK

This case heard in Westchester County, New York Family Court concerned thefailure of the Mt. Vernon Public Schools to adequately educate eleven year oldPeter Held. These proceedings were initiated after Peter Held had been enrolledin the public schools for five years, three of which in special educationclasses. During that time the child's reading level never exceeded that of an

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average first grade student. After the child was removed from the publicschool and placed in a private school, his reading level in one year increasedabout two grades and he "...became a class leader."

In his decision, Judge Dachenhausen "... noted with some concern, the lackof candor shown by the representative of the Mount Vernon city school districtin not acknowledging the obvious weaknesses and failure of its own specialeducation program to achieve any tangible results for this child over a five

year period." In commenting about the progress made by the child in the pri-vate school, the judge said, "It seems that now, for the first time in hisyoung life, he has a future." Further, the judge noted that "This court hasthe statutory duty to afford him an opportunity to achieve an education."

The court in its ruling issued November 29, 1971, noted that since thechild "to develop his intellectual potential and succeed in the academic area"must be placed in a special education setting such as the private school andsince, "It is usually preferable for a child to continue at the school whereshe is making satisfactory progress" (Knauff v. Board of Education, 1968, 57Misc 2d 459) ordered that the cost of Peter Held's private education be paidunder the appropriate state statute provisions for such use of public monies.The costs of transporting the child to the private school was assumed by thelocal district.

It is important to note that a year earlier, the child's mother appliedfor funds under the same statute for the payment of this private tuition but theapplication was not approved. This occurred even though "The superintendent ofthe Mount Vernon public schools" certified that the special facilities providedat the private school were not available in the child's home school district.Also of interest is that in June of 1971, an initial decision on this matter torequire the state and the city of Mount Vernon, where the child resides to eachpay one half of the private school tuition. That decision was vacated and setaside because the city argues that the court lacked jurisdiction over the citybecause "no process was ever served upon it and it never appeared in any pro-ceeding."

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RIGHT TO TREATMENT

WYATT v. STICKNEY M.D. et. al., 334F Supp. 1341 (M. D. Alabama, 1971),32FF. Supp. 781 (M. D. Alabama, 1971)

This action, originally focused on the claim of .state hospitalizedmentally ill patients to receive adequate treatment, began in September,1970, in Alabama Federal District Court. In March, 1971, Judge Johnsonruled that mentally ill patients involuntarily committed to Bryce Hos-pital were being denied the right "to receive such individual treatmentas (would) give each of them a realistic opportunity to be cured or toimprove his or her mental condition." The court gave the defendantssix months to upgrade treatment, to satisfy constitutional standards,and to file a progress report. Prior to the filing of that report, thecourt agreed to expand the class to include another state hospital forthe emotionally ill and the mentally retarded at the Partlow State School

and Hospital.

The defendants' six month progress report was rejected by the courtand a hearing was scheduled to set objective and measurable standards.At the hearing in February, 1972 evidence was produced which led thecourt to find "the evidence ... has vividly and undisputably portrayedPartlow State School and Hospital as a warehousing institution whichbecause of its atmosphere of psychological and physical deprivation,is wholly incapable of furnishing habilitation to the mentally retardedand is conducive only to the deterioration and the debilitation of the

residents." The court further issued an emergency order "to protect thelives and well-being of the residents of Partlow." In that order the courtrequired the state to hire within 30 days 300 new aide-level persons regard-less of "former procedures," such as civil service. The quota was achieved.

On April 13, 1972, a final order and opinion setting standards andestablishing a plan for implementation was released. In the comprehensive

standards for the total operation of the institution are provisions forindividualized evaluations and plans and programs relating to the habili-tation ("the process by which the staff of the institution assists theresident to acquire and maintain those life skills which enable him tocope more effectively with the demands of his own person and of hisenvironment and to raise the level of his physical, mental, and socialefficiency.") Habilitation includes, but is not limited to, programs

of formal structured education and treatment of every resident. Education

is defined within the order as "the process of formal training and instruc-tion to facilitate the intellectual and emotional development of residents."The standards applying to education within the order specify class size,length of school year, and length of school day by degree of retardation.

Finally, the court requires the establishment of a "human rightscommittee" to review research proposals and rehabilitation programs, andto advise and assist patients who allege that the standards are not beingimplemented or that their civil rights are being violated. Further, the

state must present a six-month progress report to the court and hire aqualified and experienced administrator for the institution.

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As of this date, the state has filed notice to appeal some or all ofthe court's decisions.

BURNHAM v. DEPARTMENT OF PUBLIC HEALTH OF THE STATE OF GEORGIA, (Civil ActionNo. 16385 (N. D. Georgia).

This is a suit seeking class action status on behalf of all patientsJ voluntarily or involuntarily committed to any of the six state-owned and

operated facilities named in the complaint and operated for the diagnosis,care and treatment of mentally retarded or mentally ill persons under theauspices of the Department of Public Health of the State of Georgia. Eachof the named plaintiffs is or has been a patient, at one of these institu-tions. The case was filed on March 29, 1972, in the United States DistrictCourt for the Northern District of Georgia.

Defendants in this case are the Department of Public Health, the Boardof Health of the State of Georgia, and Department and Board members andofficials; the superintendents of the six named institutions; and thejudges of courts of ordinary of the counties of Georgia, which are thecourts specifically authorized by Georgia law to commit a person forinvoluntary hospitalization.

The complaint alleges violations of the 5th, 8th, and 14th Amendmentsto the U.S. Constitution. It seeks a preliminary and permanent injunctionand a declaratory judgment. Specifically, the declaratory relief soughtincludes a court finding that the patients in the defendant institutionshave a constitutional right to adequate and effective treatment; a courtfinding that each of the institutions named in the complaint is currentlyunable to provide such treatment; and a holding by the Court that consti-tutionally adequate treatment must be provided to the patients in theinstitutions named in the complaint.

The plaintiffs requested the following:

1. That defendants be enjoined from operating any of the named insti-tutions in a manner that does not conform to constitutionally required stan-dards for diagnosis, care and treatment;

2. That defendants be required to prepare a plan for implementing theright to treatment;

3. That further commitments to the defendant institutions be enjoineduntil these institutions have been brought up to constitutionally requiredstandards; and

4. That the Court award reasonable attorney's fees and costs' to counsel.

Defendants filed in answer to plaintiffs complaint on April 21, 1972,in which they raise several legal defenses, such as lack of jurisdiction, andmoved to dismiss on several grounds.

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On May 11, plaintiffs received Defendant's brief on their motion to dis-

miss. Plaintiffs' lawyer plans to file a reply brief prior to formal discovery.He does not plan to seek preliminary relief until after the discovery process.

On August 3, 1972, Judge Sidney D. Smith, Jr. granted the defendants'motion for summary judgment and dismissed this case. The ruling of the court

centered on the following major points:

1. The court could find no legal precedent to allow for the declarationthat there exists a "federal constitutional right to treatment (to encompass'care' and 'diagnosis') for the mentally ill." Based on this finding, thejudge ruled that the action could not be maintained.

2. Judge Smith, in his decision, disagreed with the Wyatt Alabamadecision, primarily on the basis of the absence of a federal statute requiringthe right to treatment. He added that "the factual context in those Alabamadecisions (budgetary lots by the state legislature causing further deteriorationof an existing deficient institutional environment) is also substantiallydifferent from the existent situation in the Georgia mental health institutions."

3. The court also held that "... a conclusion as to the lack of juris-diction over the person of named defendants is also compelled by the eleventhamendment to the U.S. Constitution." This conclusion was based upon thefailure to demonstrate the "... denial of a constitutionally protected rightnor a federally guaranteed statutory right."

4. Judge Smith also commented about the appropriateness of the courtsin defining "adequate" or "constitutionally adequate" treatment.

Specifically he wrote that these questions "... defy judicial identityand therefore prohibits its breach from being judicially defined." Further,he acknowledged the defendants' argument that "the question of what in detailconstitutes "adequate treatment" is simply not capable of being spelled out asa mathematical formula which could be applied to and would be beneficial forall patients. Everyone knows that what might be good treatment for one patientcould be bad or even fatal for another."

RICCI, et. al. v. GREENBLATT, et. al., Civil Action No. 72-469F (Massachusetts)

This is another class action suit regarding the right to treatment in insti-tutions. The plaintiffs were children in the Belchertown State School in Mass-achusetts and the Massachusetts Association for Retarded Children, who like inthe Wyatt, Parisi, and New York Association for Retarded Children actions,alleged violations of their constitutional rights. The defendants were variousstate officials and officials of the school. Motions for a temporary restrainingorder and preliminary injunction were granted by the court in February, 1972,which serves to maintain the status quo until litigation is completed.

Among the provisions of those orders was that "the defendants developcomprehensive treatment plans for the residents which include adequate andproper educational services." On April 20, 1972, the defendants had filedanswers to all allegations of the plaintiffs' complaint.

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This case has been reassigned to another district court judge. A contemptmotion was also filed against the defendants for their failure to carry outissued orders.

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN et. al. v. ROCKEFELLER, et. al.72 Civil Action No. 356. PATRICIA PARISI, ANSELMO CLARKE, et. al. v. ROCKEFELLER,et. al. (E. D. New York)

These two actions were filed in the U.S. District Court for the EasternDistrict of New York. Both allege that the conditions at the Willowbrook StateSchool for the Mentally Retarded violated the constitutional rights of the resi-dents. These class action suits are modeled after the Wyatt v. Stickney (PartlowState School and Hospital, Alabama) case.

Extensive documentation was presented by the plaintiffs alleging the denialof adequate treatment. The evidence touched all elements of institutional lifeincluding: overcrowding, questionable medical research, lack of qualified per-sonnel, insufficient personnel, improper placement, brutality, peonage, etc.It is alleged in the Parisi, et. al. v. Rockefeller complaint that "No goals areset for the education and habilitation of each resident according to specialneeds and specified period of time." It was specifically charged that 82.7percent of the residents are not receiving school classes, 98.3 percent are notreceiving pre-vocational training, and 97.1 percent are not receiving vocationaltraining.

The plaintiffs in Parisi, et. al. are seeking: declaration of their con-stitutional rights, establishment of constitutionally minimum standards forapplying to all aspects of life; due process requirements to determine a"developmental program" for each resident; development of plans to constructcommunity-based residential facilities and to reduce Willowbrook's residentpopulation; cessation of any construction of non-community based facilities,until the court determined that sufficient community based facilities exist;and appointment of a master to oversee and implement the orders of the court.

Both complaints include specific mention of the necessity for includingwithin "developmental plans" and subsequent programs, appropriate education andtraining.

The preliminary schedule on these cases, which were to be consolidated,was for plaintiffs and defendants to meet in early May to stipulate standards.

PATRICIAL WELSCH, et. al. v. VERA J. LIKINS, COMMISSIONER OF PUBLIC WELFARE, et.al., No. 4-72 Civil Action 451 (U.S. District Court, District of Minnesota, 4thDivision).

In this action six plaintiffs are named as representative of a 3,500 memberclass--persons presently in Minnesota's state hospitals for the mentally retarded.Named defendants are the present and former acting commissioners of public wel-fare and the chief administrator of each of the state's six hospitals.

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The plaintiffs include severely and moderately retarded persons who areallegedly denied their right to due process of law since they do not receive"... a constitutionally minimal level of 'habilitation,' a term which incor-porates care, treatment, education, and training." It is specifically chargedthat the plaintiffs and others similarly situated are not provided with a humanepsychological and physical environment. The complaint presents supportingevidence that some residents live in "old, poorly designed and hazardous"buildings not meeting state board of health safety and health standards, 'over-crowded dormintories,' bleak accommodations; and improperly equipped bathroomand toilet facilities. Additionally, it is indicated that residents are "sub-ject to threats and physical assaults by other residents," improperly clothed,and denied any personal privacy.

It is further alleged that there is both an insufficient quantity of staffand insufficiently trained staff necessary to provide appropriate programs ofhabilitation. Due to staff shortages many residents have been forced to workin the institution as employees yet, according to the complaint, are deniedpayment as required by the fair labor standards act. Another allegation isthat the "defendants have failed and refused to plan for and create lessrestrictive community facilities ..." even though many members of the classcould function more effectively in such programs.

It is further argued that "the final condition for constitutionally ade-quate habilitation is the preparation for each resident of an individualized,comprehensive habilitation plan as well as a periodic review and re-evaluationof such a plan. On information and belief, defendants have failed to provideplaintiffs and the class they represent with a comprehensive habilitation planor to provide periodic review of these plans."

The plaintiffs are seeking a judgment to include the following:

1. A declaratory judgment that Minnesota's state institutions "... do notnow meet constitutionally minimal standards of adequate habilitation includingcare, treatment and training."

2. A declaratory judgment specifying constitutionally minimum standardsof adequate habilitation for mentally retarded persons confined in thestate institutions under the supervision and management of the commissionerof public welfare.

3. Injunctions preventing defendants "from failing or refusing to rectifythe unconstitutional conditions, policies and practices" described in the com-plaint and requiring them to "promptly meet such constitutionally minimalstan-dards as this Court may specify."

4. Injunctions requiring the defendants "to pay plaintiffs apd the classthey represent working in the named institutions the minimum wage establishedpursuant to the Fair Labor Standards Act as amended, 29 U.S.C. Sec. 201 et seq."

5. Appointment of a master.

6. Awarding of costs to the plaintiffs.

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PLACEMENT

LARRY P., M.S., M.J., et. al. v. RILES, et. al. Civil Action No. C-71-2270(N. D. California).

This class action suit was filed in late November, 1971, on behalf of the

i/ six named black, elementary aged children attending classes in the San FranciscoUnified School District. It is alleged that they have been inappropriatelyclassified as educable mentally retarded and placed and retained in classes forsuch children. The complaint argued that the children were not mentally retarded,but rather "the victims of a testing procedure which fails to recognize theirunfamiliarity with the while middle class cultural background and which ignoresthe learning experiences which they may have had in pheir'homes." The defendantsincluded state and local school officials and board members.

It is alleged that misplacement in classes for the mentally retarded carriesa stigma and "a life sentence of illiteracy." Statistical information indicatedthat in the San Francisco Unified School District, as well as the state, a dis-proportionate number of black children are enrolled in programs for the retarded.It is further pointed out that even though code and regulatory procedures regard-ing identification, classification, and placement of the mentally retarded werechanged to De more effective, inadequacies in the processes still exist.

The plaintiffs asked the court to order the defendants to do the following:

1. Evaluate or assess plaintiffs and other black children by using groupor individual ability or intelligence tests which properly account for the cul-tural background and experience of the children to whom such tests are administered.

2. Restrict the placement of the plaintiffs and other black children nowin classes for the mentally retarded on the basis of results of culturally dis-criminatory tests and testifig procedures;

3. Prevent the retention of plaintiffs and other black children now inclasses for the mentally retarded unless the children are immediately re-evaluated and then annually retested by means which take into acount culturalbackground;

4. Place plaintiffs into regular classrooms with children of comparableage and provide them with intensive and supplemental individual training thereby

enabling plaintiffs and those similarly situated to achieve at the level of theirpeers as rapidly as possible;

5. Remove from the school records of these children any and all indica-tions that they were/are mentally retarded or in a class for the mentallyretarded and ensure that individual children not be identified by the resultsof individual or group I.Q. tests;

6. Take any action necessary to bring the distribution of black chil-dren in classes for the mentally retarded into close proximity with the dis-tribution of blacks in the total population of the school districts;

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7. Recruit and employ a sufficient number of black and other minoritypsychologists and psychometrists in local school districts, on the admissionsand planning committees of such districts, and as consultants to such districtsso the tests will be interpreted by persons adequately prepared to considerthe cultural background of the child. Further, the State Department of Educa-tion should be required in selecting and authorizing tests to be administeredto school children throughout the state, to consider the extent to which thetesting development companies utilized personnel with minority ethnic back-grounds and experiences in the development of culturally relevant tests;

8. "Declare pursuant to the Fourteenth Amendment to the United StatesConstitution, the Civil Rights Act of 1964, and the Elementary and SecondaryEducation Act and Regulations, that the current assignment of plaintiffs andother black students to California mentally retarded classes resulting in exces-sive segregation of such children into these classes is unlawful and unconsti-tutional and may not be justified by administration of the currently availableI.Q. tests which fail to properly account for the cultural background and exper-ience of black children."

This case is pending in the United States District Court for the NorthernDistrict of California.

LEBANKS, et. al. v. SPEARS, et. al. Civil Action No. 71-2897 (E. D.Louisiana, New Orleans Division).

Eight black children classified as mentally retarded, have broughtsuit against the Orleans Parish (New Orleans) School Board and the super-intendent of schools on the basis of the following alleged practices:

1. Classification of certain children as mentally retarded isdone arbitrarily and without standards or "valid reasons." It is further

alleged that the tests and procedures used in the classification processdiscriminate against black children.

2. The failure to re-evaluate children classified as retardedto determine if a change in their educational status is needed.

3. Failure to provide any "education or instruction" to someof the children on a lengthy waiting list for special education pro-grams, and also denial of educational opportunities to other retardedchildren excluded from school and not maintained on any list for read-mittance.

4. Maintenance of a policy and practice of not placing chil-dren beyond the age of 13 in special education programs.

5. Failure "... to advise retarded children of a right to a fairand impartial hearing or to accord them such a hearing with respect tothe'decision classifying them as 'mentally retarded,' the decisionexcluding them from attending regular classes, and the decision excludingthem from attending schools geared to their special needs."

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6. The unequal opportunity for an education provided to all chil-

dren who are classified as mentally retarded; unequal opportunitybetween children classified as mentally retarded and normal; and unequalopportunity between black and white mentally retarded children.

The attorneys for the plaintiffs in summary indicate that many of thealleged practices of the parish* violate the equal protection and dueprocess provisions of the fourteenth amendment. They further statethat "continued deprivation (of education) will render each plaintiffand member of the class functionally useless in our society; each dayleaves them further behind their more fortunate peers."

The relief sought by the plaintiffs includes the following:

1. A $20,000.00 damage award for each plaintiff;

2. Preliminary and permanent injunction to prevent classificationof the plaintiffs and their class as mentally retarded through use ofprocedures and standards that are arbitrary, capricious, and biased;the exclusion of the plaintiffs and their class from the opportunityto receive education designed to meet their needs; discrimination"in the allocation of opportunities for special education, between plaintiffs,and other black retarded children, and white retarded children," theclassification of plaintiffs and their class as retarded and their exclusionfrom school or special education classes without a provision of a full, fair,and adequate hearing which meets the requirements of due process of law."

This case is expected to be heard early in the summer, 1972.

*Parish is the Louisiana term for county.

GUADALUPE ORGANIZATION, INC. v. TEMPE ELEMENTARY SCHOOL DISTRICT, Civil ActionNo. 71-435 (Phoenix District, Arizona, January 24, 1972)

This Arizona case was brought by the Guadalupe Organization, Inc.regarding the disproportionate number of bilingual children enrolled in

classes for the mentally handicapped. The action which has now beenstipulated provides for the following:

1. Re-evaluation of children assigned to the Tempe special educationprogram for the mentally retarded to determine if any bilingual childrenhad been incorrectly assigned to such placements.

2. Prior to the assignment of a bilingual child to the program forthe mentally retarded, the child must be retested in his primary languageand have his personal history and environment examined by an appropriate"professional advisor," such as a psychologist or social worker.

3. The records of children found to be incorrectly assigned to

the programs must be corrected.

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4. All communications from the school to the family of a bilingualchild must be in the family's primary language and must include informa-tion about the success of the special education program and notice of theirright to withdraw their children from it.

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